IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
_______________________________________________ October 20,
CHARLES K. NEWSOM,
Cecil Crowson, Jr.
Plaintiff-Appellant, Appellate Court Clerk
Vs. Davidson Chancery #91-2622-I
C.A. No. 01A01-9504-CH-00151
a division of Avco, Inc.; and
GARY L. SMITH, Individually,
FROM THE CHANCERY COURT OF DAVIDSON COUNTY
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR
H. Rowan Leathers III of Manier, Herod,
Hallabaugh & Smith of Nashville
Robert E. Boston and Stephen W. Grace of Nashville
W. FRANK CRAWFORD, PRESIDING
DAVID R. FARMER, JUDGE
WILLIAM C. KOCH, JR., JUDGE
This appeal involves a suit brought by an employee against his employer
asserting that the employer's actions, in connection with the employee's
demotion and subsequent termination, violated The Age Discrimination in
Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Tennessee Human Rights
Act (THRA), T.C.A. § 4-21-101 (1991), et. seq. The employee also alleges that the
employer's actions in connection with the demotion and termination were
slanderous and constituted outrageous conduct. Plaintiff employee, Charles K.
Newsom, appeals from the order of the trial court granting summary judgment
to defendant, Textron Aerostructures, Inc., and Gary Smith,1 and the only issue
on appeal is whether the trial court erred in so doing. The pertinent facts are as
The plaintiff, Charles K. Newsom, was born February 14, 1933. Defendant
Textron Aerostructures is in the business of manufacturing aircraft parts and other
large machinery for both private buyers and the defense industry. Newsom was
employed by defendant Textron on September 23, 1957, as an at-will employee,
and he worked at Textron for thirty-four years until he was discharged on March
During the course of Newsom's employment at Textron he received regular
promotions, satisfactory performance evaluations, work commendations, and
pay increases. Newsom eventually obtained a management position and in
April of 1988 he was promoted to the position of Senior Compliance Analyst
(SCA). As SCA Newsom was responsible for reviewing the "procurement
packages" of Textron "buyers" and insuring that Textron's procurement of tools
and other parts to be used in contracts with the federal government complied
with federal regulations controlling government contracts. Textron created the
Plaintiff stipulates in his brief that he does not appeal the dismissal as to
defendant Gary Smith.
SCA position in order to ensure that Textron successfully passed government
contract "procurement audits" which were performed by agencies of the
government.2 One of the major audits Textron was required to undergo was
a Contractor Procurement System Review (CPSR).
To ensure that Textron would successfully pass its scheduled CPSR in
November of 1989, Textron performed a "pre-CPSR" in April of 1989. A "pre-CPSR"
is Textron's own internal audit of its buyers procurement packages.3 The results
of the April, 1989 "pre-CPSR" showed deficiencies in seventy percent of the buyer
packages, and in Newsom's words the results were "not good." Following the
CPSR, Newsom was suspended without pay for a period of one week.
Subsequently, on August 10, 1989, Newsom was notified that he was being
demoted from SCA into the position of Buyer II. Newsom's successor as Senior
Compliance Analyst was Sherry Ritchie, a female under the age of forty. On
August 30, 1989, Newsom was evaluated pursuant to Textron's annual
employment evaluation policy, and he was informed at that time that he was
demoted because his performance in the position of SCA was unsatisfactory.
In the August 30, 1989 performance review, Textron stated that it demoted
Newsom, because he did not "meet the position requirements for a Senior
Compliance Analyst." The basis asserted by Textron for Newsom's deficient
performance was his performance in the pre-CPSR in April, 1989. Newsom
contends that he was demoted because of his age.
Newsom appealed his unsatisfactory performance appraisal and
These procurement audits are performed by the federal government to
prevent fraud, waste, etc., by companies that contract with the federal
The "pre-CPSRs" are performed, because failing a government CPSR
apparently can result in a company's government contracts being suspended.
demotion pursuant to Textron's internal appeal process. The appeal was heard
by a supervisor of the Senior Compliance Analyst position and another manager
at Textron. In January of 1990 the Textron managers determined the demotion
was proper and fair, and the managers refused to reinstate Newsom to the
position of SCA.
On June 21, 1990, Newsom filed an age discrimination charge with the
Equal Employment Opportunity Commission (EEOC) complaining of his
demotion to Buyer II and other allegedly discriminatory actions on the part of
Textron. In the charge, Newsom listed August 10, 1989, as the date on which the
most recent discrimination against him had occurred. On September 14, 1990,
Newsom amended his charge by inserting the word "continuing" after the
August 10, 1989, date in order to signify that the discrimination against him was
continuing. On July 18, 1991, the EEOC determined that Newsom's age
discrimination claim was without merit. Thereafter, on August 9, 1991, Newsom
filed the present action against Textron alleging, inter alia, that his demotion
violated his rights under the ADEA .
Following Newsom's demotion and during the pendency of Newsom's age
discrimination action, he continued his employment at Textron in the position of
Buyer II. Two of Newsom's duties as a Buyer II were procuring materials and
supplies from tool vendors through competitive price bidding and ensuring that
Textron complied with the defense industry's initiatives regarding fraud, waste,
and abuse in government contracts. In August of 1990, Newsom was evaluated
by his supervisors as "meeting the standards" of the Buyer II position. In August
of 1991, Newsom was again evaluated as "meeting the standards" required of
a Buyer II.
In late 1991 and early 1992, Textron decided to open a competitive bidding
process to select a company to provide all of Textron's cutting tools. During the
bidding process, Textron managers became aware that one company, Tool
Group Network, had obtained $600,000 of Textron's business in a short period of
time. Dick Kottler, Textron's Director of Materials, allegedly became concerned
over Tool Group's rapid acquisition of Textron business, and he initiated an
internal audit of Textron's contracts with Tool Group. Textron's legal department,
which supervised the internal investigation, was required by the Anti-Kickback
Enforcement Act of 1986, 41 U.S.C. §§ 55-58 (1986), to report the existence of the
investigation to the federal government. Subsequent to Textron's report,
Newsom and other Textron employees were interviewed by agents of the
federal government regarding Newsom's award of the Tool Group contracts.
During the course of the Textron investigation, an employee of Textron
who was reviewing the Tool Group contracts discovered that a number of
Textron contracts had been awarded to Tool Group without competition and
at higher prices than previous tool contracts, and that some of the Tool Group
contract documentation had apparently been altered. The Textron investigation
also disclosed instances in which Tool Group had been underbid by a
competitor, but Tool Group reduced its bid to slightly under that of a competitor,
and was thereafter awarded the contract.
The Textron investigation showed that the two buyers who had been
awarding the Tool Group contracts were Martha Martin and Newsom, and both
buyers were questioned regarding the contract awards. Following the
investigation, Textron allegedly believed that Newsom had been favoring Tool
Group during the competitive bidding process, that Newsom had engaged in
outside meetings with Tool Group during the bidding competition, and that
The Anti-Kickback Enforcement Act of 1986 provides in pertinent part, "
Whenever a prime contractor . . . has reasonable grounds to believe that a
violation of section 53 of this title may have occurred, the prime contractor . .
. shall promptly report the possible violation in writing." 42 U.S.C. §
Newsom had awarded Tool Group some Textron contracts when Tool Group
was not the lowest bidder on those contracts. Textron investigators also
believed that Newsom had accepted outside entertainment from Tool Group
and had entered into a long term contract with Tool Group without his
supervisor's approval of the contract. Textron concluded that Newsom had
engaged in improper and potentially illegal favoritism toward Tool Group
Network, and Textron fired Newsom on March 27, 1992. Textron's stated reason
for Newsom's discharge was that he "violated . . . company policies and fail[ed]
to perform job duties."
Following his employment termination, Newsom amended the complaint in
this case on July 21, 1992, alleging that his rights under the THRA were violated,
because he was discharged in retaliation for filing his age discrimination suit
against Textron in connection with his demotion. The amended complaint also
alleges that Textron's actions in connection with Newsom's demotion and
termination were slanderous and constituted outrageous conduct.5
A trial court should grant a motion for summary judgment only if the
movant demonstrates that there are no genuine issues of material fact and that
the moving party is entitled to judgment as a matter of law. Tenn.R.Civ.P. 56.03;
Byrd v. Hall, 847 S.W.2d 208
, 210 (Tenn. 1993); Dunn v. Hackett, 833 S.W.2d 78
(Tenn. App. 1992). The party moving for summary judgment bears the burden
of demonstrating that no genuine issue of material fact exists. Byrd, 847 S.W.2d
at 210. When a motion for summary judgment is made, the court must consider
the motion in the same manner as a motion for directed verdict made at the
In his complaint and amended complaint Newsom also asserted a THRA
cause of action "concerning age discrimination in connection with a demotion,
performance appraisal, appeal from that performance appraisal, and failure
to consider him for open positions; . . .[ a] cause of action for breach of the
implied covenant of good faith and fair dealing; and . . . [a] cause of action .
. . for violation of Tenn. Code Ann. § 47-50-109." Newsom does not contest the
rulings of the chancellor on these causes of action.
close of the plaintiff's proof; that is, "the court must take the strongest legitimate
view of the evidence in favor of the nonmoving party, allow all reasonable
inferences in favor of that party, and discard all countervailing evidence." Id. at
210-11. In Byrd, the Tennessee Supreme Court stated:
Once it is shown by the moving party that there is no
genuine issue of material fact, the nonmoving party
must then demonstrate, by affidavits or discovery
materials, that there is a genuine, material fact dispute
to warrant a trial. [citations omitted]. In this regard,
Rule 56.05 provides that the nonmoving party cannot
simply rely upon his pleadings but must set forth
specific facts showing that there is a genuine issue of
material fact for trial.
Id. at 211. (emphasis in original).
The summary judgment process should only be used as a means of
concluding a case when there are no genuine issues of material fact, and the
case can be resolved on the legal issues alone. Id. at 210 (citing Bellamy v.
Federal Express Corp., 749 S.W.2d 31
, 33 (Tenn. 1988)). Summary judgment is not
to be used as a substitute for a trial of genuine and material factual issues. Byrd,
847 S.W.2d at 210 (citing Blocker v. Regional Medical Ctr., 722 S.W.2d 660
(Tenn. 1987)). Where a genuine dispute exists as to any material fact or as to the
conclusions to be drawn from those facts, a court must deny a motion for
summary judgment. Byrd, 847 S.W.2d at 211 (citing Dunn, 833 S.W.2d at 80).
I. ADEA Cause of Action
We will first address Newsom's claim that Textron violated the ADEA. 29
U.S.C. § 623(a)(1) provides in pertinent part:
It shall be unlawful for an employer --(1) to fail or
refuse to hire or to discharge any individual or
otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's
age . . . .
Newsom contends that Textron's actions surrounding his demotion on
August 10, 1989, his performance review on August 30, 1989, and his
performance review appeal in January of 1990, all violated the ADEA. Newsom
contends that Textron demoted him from SCA to Buyer II because of his age,
and that Textron's stated reason for terminating his employment was merely
Textron argues that Newsom is barred from asserting an ADEA claim because
he did not file a charge with the EEOC within 300 days of the alleged
discrimination as required by 29 U.S.C. § 626(d)(1985). 29 U.S.C. § 626(d)
provides in pertinent part:
No civil action may be commenced by an individual
under this section until 60 days after a charge alleging
unlawful discrimination has been filed with the Equal
Employment Opportunity Commission. Such a charge
shall be filed . . . within 300 days after the alleged
unlawful practice occurred, or within 30 days after
receipt by the individual of notice of termination of
proceedings under State law, whichever is earlier.
Textron asserts that Newsom was aware that he would be demoted from SCA
to Buyer II on August 10, 1989, but he did not file a charge with the EEOC until
307 days later on June 21, 1990; therefore, his ADEA claims are time-barred.
Newsom, on the other hand, contends that his June 21, 1990 charge was
timely filed since it was filed within 300 days of Textron's internal appeal ruling in
January of 1990 and within 300 days of Newsom's employee evaluation on
August 30, 1989. Newsom is apparently arguing that Textron "continuously"
violated the ADEA when it did not reverse its demotion decision in the employee
evaluation or through Textron's internal appeals procedure;6 therefore, the 300
day time limit for filing the EEOC charge did not begin to run until one of those
We say "apparently" because both Newsom's brief and his reply brief are
utterly void of any argument or authority supporting Newsom's position that the
charge was timely filed. In his reply brief, Newsom's counsel merely states,
"Newsom's 1989 performance appraisal occurred on August 30, 1989, and the
denial of his appeal therefrom in January, 1990, both actions within three
hundred (300) days of his EEOC charge, as required by 29 U.S.C. § 626(d)."
Appellant's reply brief at 3.
dates (both of which are within 300 days of the charge filing).7
We think plaintiff's ADEA claims are barred by section 626(d)'s time
limitation for filing an EEOC charge, because Newsom did not file his charge
within 300 days of the alleged discrimination. Newsom knew on August 10, 1989
that he would be demoted, but he did not file an EEOC charge until 307 days
later on June 21, 1990. The timely filing of a charge of age discrimination is a
condition precedent to maintaining an ADEA lawsuit. Jackson v. Richards
961 F.2d 575
, 578 (6th Cir. 1992). Although the 300 day limitation
period is not jurisdictional in nature, and like a statute of limitations, may be
tolled for equitable reasons, failure to file within the limitations period will bar an
ADEA action unless some equitable ground exists for tolling the filing deadline.
Id. The limitations period begins to run when the plaintiff's cause of action
In Vaught v. R.R. Donnelly & Sons Co.,
745 F.2d 407
(7th Cir. 1984), the Seventh
Circuit Court of Appeals considered a question very similar to that presented by
the case sub judice. In Vaught, the 59 year old plaintiff brought an ADEA age
discrimination suit after he was demoted and replaced by a younger employee.
In October of 1979 the plaintiff learned that he was being demoted from
Department Manager to Communication Systems Analyst, and that he was
being replaced by a younger employee who plaintiff believed to be outside the
ADEA protected age category. The defendant company's stated reason for
demoting plaintiff was that plaintiff's work performance in the position of
Department Manager had been unsatisfactory. When the plaintiff learned of
his demotion he met with one of the company's executives who told the plaintiff
that he (the executive) would investigate the demotion. The plaintiff waited for
Newsom does not specify on which of the two dates his cause of action
the executive to "get back to [him]" regarding the investigation, but the
executive apparently never commenced any investigation into the demotion.
Id. at 410. In December of 1980 the plaintiff learned that in addition to
demoting him, the defendant company had also been removing a number of
middle-level managers over the age of fifty. The plaintiff then filed an age
discrimination charge with the EEOC on March 6, 1980, and an ADEA lawsuit in
federal district court shortly thereafter.
The district court held that plaintiff's ADEA lawsuit was time-barred, because
the plaintiff filed his EEOC charge more than 180 days8 after the plaintiff knew
or should have known facts that would support a discrimination charge. Id. at
410-11. The court held that plaintiff was aware of facts which would support a
discrimination charge in October of 1979 and that the 180 day time limit began
running at that time rather than December of 1980; therefore, the March 6, 1980,
filing was untimely and plaintiff's ADEA suit was barred.
The Seventh Circuit affirmed, stating:
The filing deadline with the EEOC is tolled until the time
when facts that would support a charge of
discrimination were apparent or should have been
apparent to a person with a reasonably prudent
regard for his rights . . . .' [Reeb v. Economic
Opportunity Atlanta, Inc.,
516 F.2d 924
, 931 (5th Cir.
The Vaught case was commenced in Indiana. The applicable time limit for
filing EEOC charges in Indiana and other states which are not "deferral states"
is 180 days rather than 300 days. 29 U.S.C. § 626(d)(1). A deferral state is one in
which the state has enacted its own laws prohibiting age discrimination in
employment and has authorized a state agency to seek relief for the claimant.
"The purpose of the longer [300 day] limitation period is to give deferral states
time to act upon the ADEA complaint, in accordance with Congress's intent that
"informal methods of conciliation, conference, and persuasion" be used to
eliminate the discriminatory practice before an action is initiated in the courts."
Jackson v. Richards Medical Co.,
961 F.2d 575
, 578 (6th Cir. 1992)(quoting 29
U.S.C. § 626(b)(1985)). Tennessee is a deferral state. T.C.A. § 4-2-101 (1991)("It is
the purpose and intent of the general assembly by [the enactment of the
Tennessee Human Rights Act] to [p]rovide for execution within Tennessee of the
policies embodied in the . . . Age Discrimination in Employment Act of 1967, as
amended . . . .).
In October 1979, Vaught knew more than enough
facts to establish a prima facie case: he knew that he
was fifty nine years old; he knew that he had always
received very good job performance evaluations and,
so far as he knew, he had no reason to suspect that his
job was in danger; he knew that he was demoted;
and he knew that he was being replaced by a man
he believed to be twenty years his junior.
It is apparent that in October 1979 Vaught knew
facts that would support a discrimination charge . . .
yet he failed to go to the EEOC.
Id. at 410-11. The court further held,
Vaught's use of an informal grievance procedure, by
itself, does not stop the statute of limitations from
running. "[T]he pendency of a grievance or some
other method of collateral review of an employment
decision, does not toll the running of the limitations
period." Delaware State College v. Ricks, 449 U.S. 250
261, 101 S. Ct. 498, 505, 66 L. Ed. 2d 431 (1980)(citing Int'l
Union of Electrical Radio and Machine Workers v.
Robbins & Myers, Inc., 429 U.S. 229
, 97 S. Ct. 441, 50 L. Ed. 2d 427 (1976)).
Id. at 412.
Applying Vaught to the case sub judice, we conclude that Newsom knew
or should have known sufficient facts on August 10, 1989, to file a charge of
discrimination with the EEOC. On August 10, 1989, Newsom knew that he was
within the protected age category, that he had received favorable evaluations
as a Senior Compliance Analyst in 1988, and that he was being demoted. The
record is unclear as to exactly when Newsom knew that he was being replaced
as SCA by Sherry Ritchie, however, Newsom has offered no evidence that he
could not have discovered, by the exercise of reasonable diligence, that he
was being replaced by Sherry Ritchie when he received notice of his demotion.9
Appellants have neither asserted nor offered any evidence that Newsom
inquired as to who would replace him, or that Textron answered such an inquiry
with false or misleading information, or otherwise attempted to conceal the
identity of Newsom's successor. Thus, with respect to the issue of when Newsom
had or should have had knowledge of the identity of his successor, there is no
Therefore, his claim accrued on August 10, 1989.
This conclusion finds support in the decisions of federal courts. In Allen v.
Diebold, Inc., 807 F. Supp. 1308
(N.D. Ohio 1992), the plaintiffs were informed on
October 2, 1989, that their jobs would be terminated. In November of 1990, the
plaintiffs learned that the defendant company had hired younger individuals
to replace them. The plaintiff's argued, inter alia, that their EEOC charges were
timely filed because they were filed within 300 days of the time that plaintiff's
learned that they were being replaced by younger employees. The court
rejected the plaintiffs' argument that the 300 day period should have been
equitably tolled until plaintiffs suspicions of age discrimination were confirmed
when they learned that they were being replaced by younger employees. The
court held that the 300 day limitation period began to run when the employees
received notice of their termination. The court stated:
Plaintiffs have offered no facts, apart from the
remoteness of the Southern facilities, to explain why
they did not earlier discover the defendant's
employment practices at some earlier time. This court
is inclined to believe that such facts should be
forthcoming in order to satisfy the due diligence
requirement of equitable tolling. See Wall v. National
Broadcasting Co., Inc., 768 F. Supp. 470, 476 (S.D.N.Y.
1991)(summary judgment appropriate when plaintiff
has "failed to set forth evidence demonstrating that he
could not have discovered the alleged discriminatory
act at an earlier date in the exercise of reasonable
Allen, 807 F. Supp. at 1317. The court further stated:
Moreover, there is authority, albeit not-controlling, for
the proposition that the ADEA filing limit may not be
tolled until the plaintiff discovered the hiring of a
younger replacement when the employer had not
used the timing delay in hiring a replacement as a
means to delay plaintiff's filing. English v. Pabst
evidence of any action on the part of employer Textron that would justify
equitable estoppel. See Allen v. Diebold, Inc., 807 F. Supp. 1308
1992)(discussing the difference between equitable tolling and equitable
828 F.2d 1047
, 1050-51 (4th Cir. 1987) cert.
486 U.S. 1044
, 108 S. Ct. 2037, 100 L. Ed. 2d 621
Id. at 1317-18.
Newsom has failed to set forth any evidence showing that he could not
have discovered on August 10, 1989, that he was being replaced by Sherry
Ritchie. It is necessary to place a burden of reasonable inquiry/diligence upon
Newsom to prevent him (and other ADEA plaintiffs) from "sitting on his (their)
rights." Were we to hold otherwise, the limitations period for filing an ADEA
charge of age discrimination would never commence until a plaintiff fortuitously
learned of the identity of his/her successor. In addition, the limitations period
could be easily circumvented by a plaintiff conveniently asserting that he/she
never had knowledge of the identity of his/her successor until a date within 300
days preceding the charge filing. Thus, we conclude that on August 10, 1989,
Newsom knew or should have known sufficient facts to file a charge of
discrimination with the EEOC; therefore, any cause of action which Newsom
had against Textron accrued on that date.
The appellants contend that Newsom's EEOC charge was timely, because it
was filed within 300 days of his employment evaluation on August 30, 1989, and
Textron's denial of his evaluation/demotion appeal in January of 1990. We must
reject this contention, because as previously stated, if Newsom had a cause of
action at all against Textron, such cause of action accrued on August 10, 1989.
Textron's actions in demoting Newsom, evaluating him pursuant to its policy of
annual employee evaluation, and denying Newsom's internal appeal, were not
separate or continuing acts of discrimination. Rather, Textron's employment
evaluation and denial of Newsom's appeal merely affirmed Textron's decision
to demote Newsom. In his demotion/evaluation appeal, Newsom was
contesting Textron's demotion and essentially asking Textron to reinstate him. This
being the case, Textron's "failure to reinstate or rehire does not . . . constitute an
actionable new act of discrimination or continuing discrimination so as to allow
the limitations period to begin at the time the . . . employee requests
reinstatement." Redd v. Fisher, 814 F. Supp. 547
, 550 (W.D.Tex. 1992) aff'd 35 F. 3rd.
61 (1st Cir. 1994).10 Therefore, we conclude that Newsom's June 21, 1990, EEOC
filing was untimely, and, therefore, his ADEA claims in this case are barred.11
II. THRA Cause of Action
In addition to asserting an ADEA claim, Newsom alleges that his discharge
on March 27, 1992, was in retaliation for his filing an EEOC age discrimination
charge and age discrimination lawsuit against Textron. Newsom argues that
Textron discharged him because he took these actions and that such discharge
violated T.C.A. § 4-21-301(1)(1991), which provides:
Discriminatory Practices.--It is a discriminatory practice
for a person or for two (2) or more persons to:
(1) Retaliate or discriminate in any manner against a
person because such person has opposed a practice
declared discriminatory by this chapter or because
such person has made a charge, filed a complaint,
testified, assisted or participated in any manner in any
investigation, proceeding or hearing under this
chapter . . . .
In order to establish a prima facie case of retaliatory discharge under the
THRA a plaintiff must prove the following: (1) the plaintiff engaged in a
protected activity; (2) the exercise of the plaintiff's protected civil rights was
For other authority supporting this conclusion see Delaware State College
v. Ricks, 449 U.S. 250
, 261, 101 S. Ct. 498, 506 n. 15, 66 L. Ed. 2d 431 (1980)("Mere
requests to reconsider . . . cannot extend the limitations periods applicable to
the civil rights laws."); Collins v. United Airlines, Inc.,
514 F.2d 594
, 596 (9th Cir.
1975) (A denial of a request for reinstatement does not constitute a continuing
violation or a new and separate discriminatory act, because "[a] discharged
employee who seeks to be reinstated is really litigating the unfairness of his
original discharge . . . .")(quoting NLRB v. Textile Mach. Works,
214 F.2d 929
(3rd Cir. 1954)).
In light of this holding, we do not consider Newsom's other ADEA arguments.
known to the defendant; (3) the defendant thereafter took an employment
action adverse to the plaintiff; and (4) that there was a causal connection
between the protected activity and the adverse employment action. Haynes
v. Knoxville Utilities Bd., C/A No. 03A01-9209-CH-362, 1993 Tenn. App. Lexis 260,
at *2 (Tenn. App. April 8, 1993); see also Canitia v. Yellow Freight Sys., Inc.,
903 F.2d 1064
, 1066 (6th Cir. 1990), cert denied
498 U.S. 984
, 111 S. Ct. 516, 112 L. Ed. 2d 528 (1990)(holding that a plaintiff must prove these same four elements to
establish a retaliatory discharge in violation of Title VII).12 Once a plaintiff
establishes a prima facie case of retaliation, the burden of production shifts to
the defendant to "articulate some legitimate, non discriminatory reason . . ." for
discharging the plaintiff. Canitia, 903 F.2d at 1066 (quoting McDonnell Douglass
Corp. v. Green, 411 U.S. 792
, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 668 (1973)). The
burden then shifts back to the plaintiff employee to demonstrate that the
employer's proffered reason for termination was merely pretextual and that the
adverse employment decision was motivated by a desire to retaliate against
the employee. Canitia, 903 F.2d at 1066.
Textron apparently concedes that the first three elements of establishing
a THRA retaliatory discharge claim are satisfied, thus the only element in dispute
is whether a causal connection exists between Newsom's discharge in March
of 1992 and his filing of the age discrimination suit in August of 1991 and/or his
filing of the EEOC charge in June of 1990. Newsom asserts that a causal
connection exists between the two events, because only seven months
transpired between Newsom's filing of the suit and his discharge, and that
Textron's proffered reason for his discharge was a pretext. Newsom also argues
that a causal connection exists, because Textron based Newsom's discharge on
The purpose of the THRA is essentially identical to the ADEA; therefore, federal
authority interpreting the ADEA is often utilized by courts of this state in applying
the THRA. Bruce v. Western Auto Supply Co., 669 S.W.2d 95
(Tenn. App. 1984).
his receipt of meals from vendors during the competitive bidding process.
Newsom asserts that this reason is obviously a pretext, because other "similarly
situated" Textron employees received meals but were not disciplined in any
way. Newsom asserts that Textron's stated reason for his termination (that
he "violated . . . company policies and fail[ed] to perform job duties") is only a
pretext, because the official company guidelines which he was alleged to have
violated (those forbidding receipt of gratuities and kickbacks during a
competitive bidding process) were not enforced against other employees of
Textron who also violated the guidelines. Newsom argues that Textron's stated
reason for discharging him was because he accepted certain meals from Tool
Group Network during the bidding process, and that Textron's stated reason is
obviously a pretext since other employees received meals during the bidding
process, yet they were not disciplined/discharged for the receipt of such meals.
Our review of the record reveals that Textron's stated reason for discharging
Newsom was not because he accepted meals, but rather because Newsom
was favoring Tool Group during the bidding process.
Textron's proof establishes that the reason Newsom was fired was because
he awarded contracts to Tool Group when Tool Group was not the lowest
bidder, he awarded long-term contracts to Tool Group without the required
concurrence from his supervisor, and he had outside meetings with Tool Group
officials during the competitive bidding process. Newsom has not offered
sufficient evidence which would show that Textron's above stated reasons for
his dismissal were merely pretextual. As proof that the reason stated by Textron
for his dismissal was a pretext, Newsom offers his own affidavit and evidence
that various Textron officials received meals from tool vendors during the bidding
process but were not disciplined for the receipt of such meals. Newsom also
offers "Textron Business Conduct Guidelines" which state,
Reasonable and customary business entertainment is
acceptable. Meals or entertainment, whether paid
for by Textron employees or another party, should be
in conjunction with business activity. The expense
involved, the identity of the participants and the
duration and extent of the entertainment should be
reasonable in relation to the business conduct and the
Newsom argues that this guideline establishes that it was acceptable for him
to receive business meals during the bidding process, and that even if the
receipt of such meals was not acceptable, he was the only employee
disciplined/terminated for violating the guideline. Therefore, Textron's
termination of Newsom for receiving business meals was merely a subterfuge to
terminate him for filing the discrimination suit.
This argument fails, because as stated above, Newsom has failed to
produce any evidence that he was in fact terminated for receiving business
meals. The only evidence that Newsom has offered that Textron discharged him
for receiving business meals (rather than for favoring Tool Group in the bidding
process) is paragraph 19 of his affidavit in which he states,
I was terminated from the position of Buyer II on March
27, 1992. Textron states that I was terminated for
"violation of company policies and failure to perform
job duties." I believe the real reason was my filing of a
[sic] age discrimination lawsuit against Textron in
August, 1991. The specific policy which I was accused
of violating is contained in Textron's Business Conduct
Guidelines and concerned the receipt of gratuities
and kickbacks. . . . Specifically, it was my
understanding that various business meals involving
myself, other Textron employees and a vendor which
were paid for by the vendor formed the basis of
Textron's conclusion that I was accepting gratuities
and/or kickbacks and being improperly influenced by
the vendor. I never received gratuities or kickbacks
and was never improperly influenced by a vendor.
Further, I did not violate Textron's procurement
regulations in selecting vendors to provide Textron with
materials, supplies or tools. At all times I complied with
Textron's requirements and my supervisor's instructions.
Newsom's mere "belie[f]" or "understanding" that he was discharged for
receiving business meals is insufficient to create a genuine issue of material fact.
The record provides no evidence that creates a factual dispute as to whether
Textron's stated discharge grounds were merely a pretext for terminating
Newsom because he filed an age discrimination suit against Textron. Therefore,
the trial court's grant of summary judgment to Textron on Newsom's THRA cause
of action was proper.
III Outrageous Conduct Cause of Action
In Count VI of his amended complaint, Newsom contends that Textron's
actions surrounding his termination were outrageous and caused him extreme
humiliation and embarrassment. Newsom avers that Textron reported his actions
in the competitive bidding process to the federal government without probable
cause and before a thorough investigation of the facts on which the report was
based. In addition, Newsom states:
After terminating him, Textron provided him with a
large brown plastic garbage bag into which he was
required to place his personal possessions, which had
been accumulated during just under thirty-five years
of employment with Textron. He was then ushered to
the exit through a common area at Textron where he
was required to walk in front of his work peers and
associates who he had known for many years.
Newsom contends that these actions are "beyond the pale of decency" and
constitute outrageous conduct.
The tort of outrageous conduct "exists only where (1) the conduct of the
defendants has been so outrageous in character, and so extreme in degree, as
to be beyond the pale of decency, and to be regarded as atrocious and utterly
intolerable in a civilized society, and (2) the conduct results in serious mental
injury." Bringle v. Methodist Hosp., 701 S.W.2d 622
, 625 (Tenn. App. 1985);
Swallows v Western Elec. Co., 543 S.W.2d 581
, 582 (Tenn. 1976). Furthermore, this
Court, commenting on the tort of outrageous conduct, has stated:
It has not been enough that the defendant has acted
with an intent which is tortious or even criminal, or that
he has intended to inflict emotional distress, or even
that his conduct has been characterized by 'malice,'
or a degree of aggravation which would entitle the
plaintiff to punitive damages for another tort. Liability
has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to
be regarded as utterly intolerable in a civilized
community. Generally, the case is one which the
recitation of the facts to an average member of the
community would arouse his resentment against the
actor, and lead him to exclaim, 'Outrageous!'
Blair v. Allied Maintenance Corp., 756 S.W.2d 267
, 273 (Tenn. App. 1988)(quoting
Restatement (Second) of Torts § 46 cmt. d (1965)). The record in this case does
not reveal conduct that would support a charge of outrageous conduct,
because the actions complained of do not rise to the level of outrageous,
beyond the pale of decency, and atrocious and utterly intolerable in a civilized
IV. Defamation Cause of Action
Finally, in Count VII of his amended complaint, Newsom asserts that Textron
defamed him when it reported him to the federal government because of his
actions in connection with Tool Group during the competitive bidding process.
Newsom asserts that Textron's report of his actions to the Department of Defense
pursuant to the Anti-Kickback Act, 41 U.S.C. §§ 51, et. seq. was "without factual
support" and caused Newsom serious emotional distress. We need not reach
the merits of Newsom's argument, because Newsom has failed to provide any
evidence identifying the nature of the allegedly defamatory statements or that
any defamatory statements were in fact made in connection with the report.
Since Newsom apparently does not even know what statements were made to
the government in connection with the report, he certainly cannot prove that
the statements were false or caused him actual damages. See Sullivan v.
Young, 678 S.W.2d 906
, 910 (Tenn. App. 1984)("The plaintiff must not only prove
publication of a false statement to a third person, but he must also prove actual
Accordingly, the order of the trial court granting summary judgment to
defendant Textron is affirmed. Costs of this appeal are assessed against the
W. FRANK CRAWFORD, PRESIDING
DAVID R. FARMER, JUDGE
WILLIAM C. KOCH, JR., JUDGE